CONSULTATION AND INFORMATION

Moray Council v Stewart

EAT(Sc): Elias J (President), Miss J Gaskell and Miss G Lenaghan: 20 April 2006

The appellant council operated three collective agreements with trade unions relating to the provision of information to employees. A petition was presented to the council by which between 10 and 40% of its employees requested the council to initiate negotiations, pursuant to regulation 7 of the Information and Consultation of Employees Regulations 2004, to reach an agreement in respect of information and consultation arrangements. The council took the view that the collective agreements were "pre-existing agreements" covering all council employees, for the purposes of regulation 8, and decided to hold a ballot to seek endorsement of the employees' request. A complaint was made to the Central Arbitration Committee by one of the petitioner employees that the agreements did not satisfy the requirements of regulation 8(1) in that they did not provide for consultation with non-trade union members and so did not "cover all the employees", contrary to subparagraph (b), and had not been "approved by the employees", as required by subparagraph (c). The committee found that the agreements related to all employees of the council without differentiating between union and non-union members and, therefore, did "cover all the employees"; that trade union representatives represented all employees whether or not they were union members and the majority of the workforce belonged to a union and, therefore, endorsement by the union representatives constituted approval by the employees; but that one of the agreements, relating to teachers, did not "set out" how the council was "to give information to the employees or their representatives and seek their views" as required by regulation 8(1)(d). The committee accordingly held that there was no pre-existing agreement fulfilling the conditions specified in regulation 8(1) and it upheld the complaint.

The council appealed and the employee cross-appealed.

The Employment Appeal Tribunal held:
(1) In the case of multiple agreements, whereas subparagraph (b) of regulation 8(1) of the Information and Consultation of Employees Regulations 2004 was met by the agreements being read together, each of the other subparagraphs had to be met by each individual agreement, and it was not sufficient for merely one of the agreements to do so, even if it covered the majority or a substantial proportion of employees, and the Central Arbitration Committee had been right to find that subparagraph (d) was not satisfied with respect to one of the collective agreements.
(2) It was appropriate to describe employees as being "covered by" the terms of a collective agreement if that agreement was intended to regulate their terms and conditions whether or not they were union members, and, similarly, employees were "covered by" an information and consultation agreement, for the purposes of regulation 8(1)(b), if they came within a category of employees intended to be regulated by that agreement. While "approved by the employees" in regulation 8(1)(c) meant approved by the majority, where there were a number of agreements, the question of approval could not be considered in the aggregate, and it was necessary for each of the agreements to be approved by the employees covered by that agreement, but it was not possible on the evidence to say whether that was the position in the present case. While there had to be evidence from which the Central Arbitration Committee could properly infer that the majority of employees covered by a particular agreement had approved that agreement, it would usually be legitimate to infer approval if at the time of the agreement the majority of employees covered by the agreement were members of unions which were parties to the agreement.

The appeal and the cross-appeal were dismissed.

Appearances: Brian Napier QC (Solicitor, Moray Council) for the council; the employee in person.